Shapiro, Arato & Isserles Wins D.C. Circuit Appeal for Unity08

On March 2, 2010, in a unanimous ruling, the United States Court of Appeals for the District of Columbia Circuit reversed a district court decision that permitted the Federal Election Commission (“FEC”) to regulate Unity08 as a “political committee” under the Federal Election Campaign Act (“FECA”). Unity08 is a group that sought during the 2008 election to help enable Americans to nominate a presidential candidate who would focus on the key issues affecting most Americans, and provide an alternative to the extremes presented by the two major political parties. The group planned to obtain ballot access for its eventual nominees for president and vice president of the United States in 2008, and to hold an online convention in which voters would select the nominees.

However, the group’s efforts in 2008 never came to fruition, because in 2006, the FEC issued an advisory opinion concluding that Unity08 was a “political committee” and therefore subject to regulations including strict limits on contributions from donors. The district court rejected Unity08’s statutory and First Amendment challenge to the FEC’s conclusion, and Unity08 appealed. The D.C. Circuit ruled that because Unity08 was not affiliated with any particular, identified candidate, and had never previously placed candidates on the ballot, it could not be regulated as a “political committee” under FECA while merely engaging in ballot access and nominating convention activities. The court also rejected the FEC’s arguments that the case should be dismissed as moot or for lack of final agency action.

The court’s ruling will enable Unity08, which had suspended its activities in 2008 due to the issuance of the July 2006 advisory opinion, to resume its activities, renamed Unity12, for the 2012 presidential election.

Shapiro, Arato was lead counsel for Unity08 on appeal. Alexandra A.E. Shapiro argued the appeal, and Marc E. Isserles co-authored the briefs.

To read the D.C. Circuit’s opinion, click here.